Court File and Parties

Ontario Court of Justice

Date: 2014-09-12

Court File No.: Brampton 12-945

Between:

Her Majesty the Queen

— and —

Andrew Potocnik

Before: Justice D.F. McLeod

Heard on: July 4, 2014

Reasons for Judgment released on: September 12, 2014

Counsel:

• J. Vlacic, counsel for the Crown
• M. Pasquale, Counsel for the defendant Potocnik

Judgment

D.F. McLEOD J.:

Introduction

[1] This is an application brought on behalf of Mr. Potocnik alleging that the actions of PC Cooper were excessive and would bring the administration of justice into disrepute should the case be allowed to continue.

The Relevant Charter Provisions

[2] Section 7 provides citizens with a right to be secure against arbitrary force, especially physical violence by state actors:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

[3] Jurisdiction to provide a remedy for a breach of a Charter right can be found in s. 24(1) and (2):

24(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a Court of competent jurisdiction to obtain such remedy as the Court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a Court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

Facts

[4] On January 12, 2013, PC Jeffery Cooper was on general patrol in and around the area of Second Line, which is north of Old Derry Road. This area has been known for problems with respect to criminal offences and Liquor Licence Act infractions.

[5] At approximately 10 pm, Officer Cooper attended a dead-end street and observed an Acura NSX, which passed him travelling in the northbound direction. For reasons not necessary for the purposes of this application the vehicle was stopped and investigated by PC Cooper.

[6] According to Officer Cooper, Mr. Potocnik was not pleased about the roadside investigation, and was also not complying with Officer Cooper's orders to place his hands on the front of the cruiser.

[7] At the point that Mr. Potocnik was being arrested, the officer attempted to cuff him. At that time, the accused pulled his hand away slightly. The officer described the gesture as not in fact violent and he also indicated to the court that Mr. Potocnik stated he was not willing to consent to the search.

[8] The officer indicated that when he went to put Mr. Potocnik's hands behind his back with him facing away from him he, being the accused, attempted to turn back towards him. The officer described what was taking place as "he wasn't physically resistant, but he was not complying."

Cell Area

[9] The catalyst of this charter application takes place in the cell area, and is captured by police videotape. Mr. Potocnik was being un-cuffed; the officer follows a certain procedure, which is to have the accused place one hand on the wall while the other hand is being un-cuffed.

[10] During this process, while the officer had the handcuff key in his right hand, according to the officer, Mr. Potocnik tensed up and pulled with his right hand. The officer further indicated that he pulled his body towards him and as a result he was taken to the ground in order to secure him and then re-secured in handcuffs.

[11] The officer felt that this tensing by the accused was perhaps a precursor to some sort of aggressive movement whether it be a strike or another type of violent response.

[12] There is further comment that was made once Mr. Potocnik was taken to the ground and restrained; however, again, for the purposes of this application those comments do not bear into the analysis.

[13] The officer indicated in chief that the sole reason for the actions that he undertook was officer safety as well as for the safety of the accused.

[14] Mr. Potocnik received no injuries as a result of the altercation nor was any medical attention asked for by Mr. Potocnik.

Did Mr. Potocnik Provoke the Altercation?

[15] I begin this analysis by reviewing what would appear to be the same type of action and activity that was alleged to have been done earlier while the officer was affecting his arrest at the roadside.

[16] The officer described the defendant as dazed and confused at times and perhaps under the influence. He indicated to the court on several occasions that he had to repeat commands several times, as well as indicating that it was his belief, that Mr. Potocnik did not understand at times what was being asked of him.

[17] The defendant was told at the roadside several times to place his hands on the front of the vehicle however according to the officer he continued to be argumentative as well as hesitant to comply. The officer also indicated that he eventually complied with putting his hands on the car in front of him but he also indicated to the Court that when he attempted to place the defendant's hands behind his back, Mr. Potocnik attempted to turn back towards him.

[18] The officer, whilst providing his evidence in chief described a scenario where he had given repeated demands to Mr. Potocnik in an attempt to handcuff him. During the process of arresting him, Mr. Potocnik in his words "pulled away slightly" and stated he was not consenting to the search.

[19] This exchange took place at the roadside. The actions as they have been described are very similar to those that eventually transpire within the cell area at the police station.

[20] I have also had an opportunity to review the actions and activity associated with Mr. Potocnik whilst waiting at the station. He is compliant by all accounts and moves when directed.

[21] At the station, while the officer was attempting to take off the defendant's handcuffs, the officer indicates that Mr. Potocnik was advised that he would be taking his handcuffs off one at a time. At one point whilst removing the handcuffs the officer indicated to the court that the defendant "tensed up and pulled with his right hand, pulling his body towards him," at which point he was taken to the ground.

[22] These events unfold rather quickly and this court has reviewed the tape several times to gain a vantage point as to what had taken place just prior to the altercation between the police officers and Mr. Potocnik.

[23] According to Officer Cooper there are no words exchanged of any significance other than commands prior to the take down. It is also noteworthy that the officer makes no inquiries of the defendant upon feeling the arm tense up and pull to a certain degree.

[24] The court finds it always difficult to be placed in a situation where to a large degree you are asked to become an "armchair quarterback," but in many respects what is being asked of the court is to review the facts and determine whether the actions of the parties were appropriate in the circumstances.

Were the Actions of the Police Excessive in the Circumstances?

[25] When viewing the segment of the cell area video as well as the sequence of events from the moment that Mr. Potocnik is captured on the video he appears very compliant and at times docile. He appears to stand when asked and to sit in a very still, almost stoic, position while within the view of the camera.

[26] At one point in the video it appears that as per the request of Officer Cooper, Mr. Potocnik places one hand on the wall while the other is behind his back to allow the officer to remove his cuffs.

[27] In the process of removing his handcuffs Mr. Potocnik looks back, at which point his hand would have shifted positions. This movement, based on the officer's account, is what starts the interaction. Mr. Potocnik is then forced up against the wall with the forearm of one of the officers behind his neck. He is then placed in a choke hold and forced to the ground; both officers are then able to take him by one of his arms and eventually restrain him.

[28] It is not lost on the court that these types of interactions are dynamic; however, when looking at the entirety of the situation and the manner in which Mr. Potocnik was interacting with the police officers while at the station as well as having the advantage of the video tape, it is clear to this court that matters could have been handled much differently and cooler heads should have prevailed.

[29] It is the belief of this Court that the officers' actions towards Mr. Potocnik in the cell area were in fact excessive under the circumstances. At the time that the force is used in order to place Mr. Potocnik on the ground, he still has his left arm on the wall as per the officer's instructions. What is also noteworthy is that even when he is being wrenched around his neck and the other officer has now come to the aid of Officer Cooper, Mr. Potocnik is still attempting to keep both of his hands on the wall.

[30] The force that was used in this instance was proportional to the perceived threat in that once Mr. Potocnik was ushered to the ground and secured there was no more force occasioned on his person. However, the purpose for the maneuver in the first place must also be analyzed in the context of the circumstances. I view those circumstances as follows:

(a) Officer Cooper gave evidence that Mr. Potocnik appeared dazed and confused;

(b) When initially being arrested, the officer indicated that the defendant appeared to resist in some fashion yet none of the actions taken on the videotape were employed and the arrest proceeded without incident;

(c) In looking at the video tape this court observed the defendant and found him to be compliant with the requests of the various police officers, and the evidence of Officer Cooper did not indicate that he was anything other than compliant;

(d) At the time of the altercation the defendant is being released from the handcuffs, as opposed to being left in a situation where he is confined for a longer period of time;

(e) At the time that he turns around he is still following the direction of the officer by ensuring that his right hand is still visible and on the wall;

(f) Even during the altercation when Officer Cooper has his hand around the neck of the defendant the video shows that he, being the defendant, is attempting to place his other hand on the wall, as opposed to attempting to resist the officers. When looking at the events as they transpire it is not lost on this court that what was originally taking place was the taking off of the handcuffs and as a result of the altercation he is going to be placed back in restraints. His resistance on a common sense approach would make more sense in the event that his liberty was being further curtailed as opposed to the other way around;

(g) During the altercation the defendant does not swing or attempt to punch at the officers which allows the altercation to be finished in a matter of seconds.

[31] The above circumstances when viewed objectively would not require in this court's opinion the actions undertaken by Officer Cooper and as such this court finds his actions excessive.

[32] Police officers come into contact with a multiplicity of individuals on a daily basis. These interactions are coloured with a variety of personalities, all of which require context in order to determine appropriate action as well as reaction.

[33] Every individual, once in police custody, not only loses some autonomy, they also are reliant on the state in order to protect their "security of person." This extension of state power comes with it an extraordinary amount of responsibility. This responsibility must be held sacred because all levels of the human condition will interact with police authorities and each person found on that continuum must be secure.

[34] This officer comes into contact with an individual who, according to his observation, is dazed and confused. At the roadside, in many respects he does exactly as was done in the cell area; in that he pulls away his arm and as described by the officer appears to be not willing to consent to the arrest, yet the actions taken by the officer at the roadside during their initial interaction does not raise to the level as was seen on the video, according to the evidence of the officer.

[35] This court has reviewed all of the evidence and has concluded that the s.7 rights of the defendant have been infringed and to allow the evidence to stand as is would bring the administration of justice into disrepute so as such the evidence obtained against Mr. Potocnik will be deemed excluded.

Released: September 12, 2014

Signed: "Justice D. McLeod"